Thank you, Mr. Chair. I look forward to being grilled and grilled.
Thank you, colleagues, for this opportunity to speak to you about this important initiative. As you know, this initiative has, in the last little while, generated a great deal of controversy. I hope that over the course of this next hour we can direct our minds to some of the issues that might be generated by Bill C-300. This committee, under the chairmanship of Dr. Bernard Patry, issued a report in 2005 to ensure socially and environmentally responsible conduct by Canadian companies, with a particular interest in the activities of a particular Canadian mining company, TVI Pacific, in the Philippines.
It was a comprehensive report that recognized that Canada, as a leader in the extractive sector, had a moral and legal responsibility to lead. It was also an unanimous report. It said in part that “Canada does not yet have laws to ensure that the activities of Canadian mining companies in developing countries conform to human rights standards, including the rights of workers and of indigenous peoples.”
The report led to the round tables in 2007. I have here a copy of the round tables' report. The round tables were a multi-stakeholder group of people from industry, NGOs, and various other entities who compiled the reports and tabled them. They had six recommendations, of which numbers three and four are the most significant for the purposes of this committee. Recommendation three called for “An independent ombudsman office to provide advisory services, fact finding and reporting regarding complaints with respect to the operations in developing countries of Canadian extractive companies.”
And the fourth called for “A tripartite Compliance Review Committee to determine the nature and degree of company non-compliance with the Canadian CSR Standards, based upon findings of the ombudsman with respect to complaints, and to make recommendations regarding appropriate responses in such cases.”
It was felt this would improve Canada's competitive position. It was hoped that the government would respond in a timely fashion, but it didn't do so. In 2009, the report was re-tabled. We still have had no response. So along comes Bill C-300, a rather modest little bill that.... If you listen to its critics, you'd think we were approaching the end of western civilization as we know it.
The government has felt that doing nothing was not an option, so they chose to do the next best thing, which is the appearance of doing something while in fact doing very little. In fact, I'll argue that what they did on March 26--that is, the issuance of a press release and the order in council appointment of a counsellor--is in fact worse than nothing.
I'm working on the assumption that all of you are fairly well informed about corporate social responsibility and environmental stewardship. In the time allowed to me, I don't propose to re-plow old ground—although I dare say that given your witness list, there will be quite a number of witnesses who do want to raise to your attention some very, very serious issues regarding CSR and environmental stewardship.
Ironically, the tabling of the press release and the setting up of a dedicated counsellor foreclose the debate about CSR. The government, by doing so, has in fact confirmed that we—meaning Canada—do have a CSR problem and proposes to address it in particular way. So the debate about whether we should or we shouldn't is now over. Now we're on to the question of what is the appropriate methodology.
So essentially you have three approaches. You have this approach, which is the round table report. You have the second approach, which is the government's press release with an order in council attached. And you have Bill C-300.
For the purposes of our discussion, this approach is off the table. It is very clear that whatever response this government is going to give to CSR, it has given it already. It is reasonable to conclude that the Prime Minister has done pretty well everything he's going to do about CSR during this government.
What he has proposed instead is the appointment, by order in council, of a counsellor dedicated to CSR, with a mandate to educate and investigate. I have no great objection to the Government of Canada educating and encouraging Canadian companies to be world leaders and to adopt best practices on CSR. That should be applauded. My objection is to the investigative part of the mandate, which, in my judgment, has the appearance of doing something while doing little or nothing.
The counsellor is an order in council appointment. It's trite but true, but what a Prime Minister can make, a Prime Minister can unmake. The appointment will only last as long as the Prime Minister wants it to last, and if the counsellor strikes a course just a touch too independent for the Prime Minister, he will have his appointment revoked or suffer the fate of a death by a thousand cuts--witness Mr. Page, in the Library of Parliament. There is nothing like having your budget cut to curb your investigatory enthusiasm.
Bill C-300, on the other hand, proposes a legislative mandate that will not be subject to the whims of a Prime Minister or, indeed, of any Prime Minister. A repeal of the order in council requires a pen and a piece of paper in the hands of a Prime Minister, whereas a repeal of an act of Parliament requires an act of Parliament--two very different beasts.
In addition to the vulnerabilities that the appointment process and the whim of a Prime Minister's limitations place upon the ability of the counsellor to investigate, there is within the mandate a heading called “Limitations on Authority”. It says that no investigation can be launched into the activities of a Canadian mining company unless the company itself consents to the counsellor conducting the investigation with the “express written consent of the parties involved”.
How do you think that's going to play out? Would it be reasonable to assume that the only companies that are going to consent are already CSR-compliant? If they are already CSR-compliant and they agree to an investigation, what kind of report is the counsellor going to produce? We're going to have a happy bunch of little reports that are entirely useless to everyone.
Contrast that to Bill C-300, wherein the minister is not under a similar restriction. Under a Bill C-300 regime, the minister will not have to obtain the consent of the corporation or company prior to launching an investigation. It's a little like the police asking the accused whether they can investigate the allegation first. Just to state it makes it sound somewhat dubious.
So we have a counsellor appointed--or unappointed, as the case may be--on the whim of a Prime Minister, vulnerable to budget restrictions without notice, and producing happy little reports of dubious benefit to anyone. But it gets worse.
Prior to launching an investigation, the counsellor shall “consult with the national contact point”. You will hear from other witnesses on what they think about the national contact point, but “dysfunctional” and “a tremendous reputational burden for inaction” are words you will hear. Civil society and private sector actors in the national round tables agreed that the national contact point was not an appropriate mechanism for advancing human rights and performance standards in mining, oil, and gas.
It gets worse. In addition, “The Counsellor shall not...make binding recommendations”. If the recommendation is not binding, what is it?
The counsellor may only review on getting a request from an individual, group, or community that “may be adversely affected”. If an NGO such as the Mennonite Central Committee--or any other NGO, for that matter--observes something that is a breach of CSR standards, it in itself is not adversely affected, so the counsellor has no mandate to investigate.
Further, under section 6.2, the counsellor may not on his or her own initiate a review. If an NGO sees something that should be investigated, the counsellor's hands are tied. He or she has no power to do an independent investigation.
So let's review. We have an order in council, which is on the PM's prerogative. We have an inappropriate precondition of a national contact point. If we have no consent by the company, we have no investigation. If there are no adverse interests affected, the person has no status to complain. There is no independence on the part of the counsellor and no initiative ability. And just to top it all off, all recommendations aren't binding.
If the counsellor jumps through all these hoops, there's an elaborate process set out in paragraphs 6(5)(a) to 6(5)(f) for conducting a review that will have a number of formal and informal add-ons from the lawyers of the affected company. I say good luck to that counsellor.
If the counsellor jumps through all the foregoing hoops, before he or she issues a statement the counsellor must inform the parties of the results. If the report is adverse, the counsellor must give them opportunity to comment. If the counsellor is still determined to publish after all this, the company then may go to the courts and seek a mandamus order to quash the findings. So how many adverse findings do you think we're going to hear out of this counsellor?
Canada is at a crossroads here. It's an important player on the international stage in this area, and the complaints are starting to pile up. You have a bill kit. You'll see in there three very serious complaints: one about Barrick in Papua New Guinea; another one about Goldcorp in Honduras; and another about Banro in the Congo. You'll see some pretty negative commentary on the part of some pretty respectable people.
On the Barrick Gold one, it says there have been numerous complaints over the actions of Barrick Gold at this mine, with the most recent allegations culminating in the Norwegian Ministry of Finance disposing of its shares in the company over ethical concerns in regard to their waste disposal practices. Based on an in-depth assessment of Barrick's operations in Porgera, the pension fund's council of ethics concluded that investment in Barrick amounted to “an unacceptable risk of the Fund contributing to serious environmental damage.” The council added that “the company's assertions that its operations do not cause long-term and irreversible environmental damage carry little credibility.”
You can read the rest for yourselves. Goldcorp in Honduras had the largest fine ever assessed by the Honduran government against a corporation. And then, in the Congo, that's another story altogether.
So there we have it. Other witnesses will speak far more eloquently than I about these complaints and, I assume, others. I'm quite prepared to concede that occasionally these reports may be frivolous and vexatious and there may be actually other games in play, but if you look at Bill C-300, there is a mechanism to deal with frivolous and vexatious complaints.
We will be presenting amendments that incorporate the Government of Canada's press release and the counsellor into Bill C-300. We think incorporating the counsellor into Bill C-300 meets some of the criticisms I've just outlined and addresses the vulnerability of the appointment in the preconditions of consent and the ability of the counsellor to initiate proceedings. It also neatly sidesteps the royal recommendation, because the Government of Canada, in its press release, has already committed funding to a regime. I would invite any one of my Conservative colleagues to move that amendment. I'd be happy to have you move it.
As members of Parliament, you will incur significant blowback from some of the most powerful people and companies in Canada who do not want, under any circumstances, a legislative response to the allegations of a growing CSR problem. From their perspective, a preferable course would be to do nothing at all. Their default position, however, is the Government of Canada press release and then fighting it out behind closed doors with the counsellor.
Let's be clear here. Canada has a choice: it can legislate a response that would put Canada at the head of the class, or it's more business as usual--see no evil and hear no evil. Voluntary guidelines have pretty well run their course. The question is really whether you as MPs want to move Canada along to the next logical position: a legislative mandate for CSR. Their preference would be to kill Bill C-300 and then lawyer it to death. Unless you give the counsellor some legislative spying, it will be a repetitive environment.
You have written your report, and it now has a response some four years later. I wish you Godspeed in your deliberations, and I thank you for your time and attention.
